Posts Tagged ‘terminated’

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach. The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel. They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian. On the date of termination, each terminated employee was called into a meeting with the HR department and fired. When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks. Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos.The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino. Articles about this case from when it was filed, show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices. This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be? They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

Employee’s Slang in Comments on Social Media Protected as Concerted Activity

A panel of the National Labor Relations Board ordered an Iowa electric company to rehire and pay back wages to a utility pole employee who was terminated for posting on social media that the Company was a “goat bang,” which he later testified was a commentary about the utility company’s safety policies—including (a) inadequate training and (b) splitting teams into groups that were too small to ensure employee safety. The Company learned of this social media post when employees who were offended by the post showed their supervisors.

The panel held that the Company violated the National Labor Relations Act (NLRA) by firing the employee for his post. The panel held that the social media comments (even calling the Company a “goat bang”), while not “inherently concerted” and therefore not subject to heightened protection, were “concerted activity for the purpose of mutual aid or protection.” According to the NLRB, the Company’s explanation for firing the employee was pretextual, as multiple Company witnesses said that the employee was “canned” because of his posts. Notably, the NLRB also determined that the Company’s “attitude” and “conduct” policies, which the Company pointed to in justification of this termination, were illegal under the NLRA because the policies interfered with workers’ rights.

This decision demonstrates the careful consideration employers should give to a decision to terminate an employee for raising concerns about the Company on social media. Employers should also be reminded to evaluate their seemingly neutral policies for compliance with the NLRA. For more information or to consult with one of FMG’s seasoned Labor and Employment attorneys regarding reviewing your company’s policies, contact Robyn Flegal at [email protected] or any of the attorneys in our National Employment Law Practice Group.

This USA Today article is another example of how social media is presenting new legal issues in the workplace. According to the story, the tech company SendGrid fired a female employee named Adria Richards because she tweeted complaints about a group of men sitting behind her at a conference making sex jokes. You can read Ms. Richards’s play-by-play tweets about the jokes (complete with pictures of the alleged jokers) by clicking here. According to the story, SendGrid says it terminated Ms. Richards, because it “doesn’t support how she reported the conduct.” This raises a number of interesting issues, but at the very least it is a good reminder of the new challenges employers face because of social media. Time will tell, but what do you think – fair decision or cautionary tale?